Matter of Nakhla v Planning Bd. of Town of Mount Pleasant

[*1] Matter of Nakhla v Planning Bd. of Town of Mount Pleasant 2005 NY Slip Op 51971(U) [10 Misc 3d 1055(A)] Decided on September 29, 2005 Supreme Court, Westchester County Nastasi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 29, 2005
Supreme Court, Westchester County

In the Matter of Hafzi Nakhla and Fiby Nakhla, Petitioners,

against

Planning Board of the Town of Mount Pleasant, Respondent.



1959/05

Aldo A. Nastasi, J.

The instant petition for relief pursuant to CPLR Article 78 seeks a judgment reversing, annulling and setting aside the resolution of the respondent Planning Board of the Town of Mount Pleasant dated January 6, 2005, and filed in the office of the Town Clerk of the Town of Mount Pleasant on January 11, 2005, which denied petitioners' application for an accessory apartment for their dwelling located at 132 Woodland Drive, Pleasantville, New York. Petitioners seek an order directing the respondent to grant approval for the accessory apartment. Petitioners contend that the denial of their application was arbitrary, capricious, illegal, beyond the scope of its authority and unsupported by substantial evidence, and must be set aside by this Court. This Court must agree.

DISP.

At the time petitioners applied for a permit for the accessory apartment located in their home, it was the stated specific purpose and intent of Section 218-36 of the Zoning Code of the Town of Mount Pleasant "to permit accessory apartments on one-family residential properties in all one-family residence districts to provide the opportunity and encouragement for the development of small rental or owner-occupied housing units designed, in particular, to meet the special housing needs of single persons and couples of moderate income, both young and old, including, relatives and friends of families presently residing in Mount Pleasant" (emphasis added). Thus, this section was intended to "allow and encourage" these accessory apartments "to provide economic support for present resident families of moderate or limited income, to promote efficiency in the consumption of energy and the town's natural resources and to protect and preserve property values." To this end, one (1) accessory apartment was to be permitted within an owner occupied principal dwelling upon obtaining a permit therefor. The code also made provisions as to apartment size (a minimum floor area of three hundred (300) square feet, but in no area to exceed twenty-five percent (25%) of the area of the dwelling building in which it is located, unless the Planning Board determines that greater or lesser amount of floor area is warranted by the specific circumstances of a particular building), water and sewer service (to be approved by the Westchester County Department of Health and the Town Engineer), off street parking (two(2)) spaces per unit) and access thereto and compliance with all other applicable building, fire, electrical, health and other applicable safety codes (Zoning Code of Mount Pleasant, Section 218-36(D), (E), (H), (I), (J)).

Petitioners' application was considered at seven (7) separate meetings of the respondent Planning Board between September, 2001 and December, 2004. By resolution dated January 6, 2005, respondent denied the petitioners' application setting forth three (3) reasons. First, respondent found that the existing macadam driveway, along with the additional driveway area and parking spaces, all located in the front yard of the lot, resulted in an adverse aesthetic impact negatively, impacting the character of the neighborhood.

However, this Court finds that such finding is not supported by the record. In fact, the record before this Court reveals that the existing driveway and the proposed additional driveway and parking spaces otherwise conform in all respects to the setback requirements in the Town [*2]Zoning Ordinance. Petitioners, as they assert, are free to so enlarge the macadam area at will. Thus, any conclusion that such action would result in any adverse impact on the neighborhood is arbitrary and capricious at best.

Next, respondent found that the sight distance measurement to the west of the site driveway (171.19') failed to meet the applicable AASHTO standards given the grade, geometry and observed vehicle travel speeds on Woodland Drive which represents a public safety concern that "must not be exacerbated by the establishment on another dwelling unit". This conclusion is again wholly unsupported by any data in the record. Moreover, there is no record of any automobile accidents in connection with the petitioners' driveway or any other driveway on Woodland Drive.

Finally, respondent found that the application did not comply with the provision of Section 218-36(1) requiring the provision of public sewer and water. However, respondent acknowledged that this provision did not become effective until February 11, 2003 and did not apply. Nevertheless, respondent expressed "concern about the adequacy of an adequate water supply for the additional dwelling" which remained a serious issue. Respondent noted that it had requested petitioners to provide a ground water pumping test to verify the adequacy of the water supply, but they declined. As a result, respondent found it could not reach a satisfactory and conclusive decision regarding the adequacy of the water supply for the accessory apartment.

However, the record reveals that the Town Engineer had approved the water supply. Further, petitioners retained the services of a hydrologist who found that the water capacity for wells in the area were already sufficient, especially since the neighborhood bordered Graham Hills Park, a large part owned by the County that did not deplete the aquifer, and that the costly test demanded by the respondent was not warranted and would not be accurate.[FN1] The house, built in 1985, had never had any problem with the water supply and it appeared that the accessory apartment had existed therein since its construction. In his opinion, any problems with neighboring wells were caused by the inadequacy of those wells and not because the aquifer might be depleted because of usage.

Petitioners here argue that they have met all of the standards prescribed by the Town of Mount Pleasant Zoning Code and, accordingly, contend that the permit as requested should have been granted. Petitioners urge that respondents did not base the denial on any of the factors set forth in Section 218-36 and, in effect, created special standards for the petitioners' application based upon growing community opposition to accessory apartments. [*3]Petitioners contend that respondents were not authorized to change the specific standards in the guise of applying the generalizations of Section 218-36 and that the standards set forth therein were the only ones proper and adequate for the determination as to whether the permit should issue and respondent was powerless to change them.

It simply cannot be gainsaid that local zoning boards have substantial discretion in considering applications for such things as permits and variances. Judicial review of a zoning board determination is limited to deciding whether the action taken by the zoning board is illegal, arbitrary, or an abuse of discretion (Matter of Fuhst v. Foley, 45 NY2d 441; Conley v. Town of Brookhaven Zoning Bd. Of Appeals, 40 NY2d 309; see Matter of Rosof v. Bailin, 237 AD2d 612; Matter of Sycamore Run, Inc. v. Foss, 237 AD2d 929). The determination of the zoning board will ordinarily be sustained if the determination has a rational basis and if it is supported by substantial evidence (see Matter of Fuhst v. Foley, supra at 444; Matter of Papanicolaou v. Zoning Board of Appeals, Village of Pleasantville, 237 AD2d 445; Matter of Bergen v. Zoning Board of Appeals of Putnam Valley, 237 AD2d 587, app. dismissed 90 NY2d 828, lv. denied 91 NY2d 806; Matter of McGlasson Realty Inc. v. Town of Patterson, 234 AD2d 462). Thus, where the evidence is conflicting and room for choice exists, a court may not weigh the evidence or reject the choice made by the zoning board (Matter of Toys "R" Us v. Silva, 89 NY2d 411). If a decision is rational and is supported by substantial evidence, a reviewing court may not substitute its judgment for that of a zoning board of appeals even if an opposite conclusion might logically be drawn (see Matter of Cowan v. Kern, 41 NY2d 591, 598, rearg. denied 42 NY2d 910; Matter of Sycamore Run, Inc. v. Foss, supra ; Matter of Coco v. City of Rochester Zoning Board of Appeals, 236 AD2d 826; Matter of Malin v. Leibowitz, 229 AD2d 580).

The record in this case, however, clearly establishes that the determination by the respondent Planning Board was arbitrary and capricious and that its decision was not rationally based on the applicable standards and was not supported by substantial evidence.

It is, of course, well-settled that, unlike a variance which allows the use of property in a manner otherwise prohibited by a zoning ordinance, a special use permit such as the one at bar authorizes the use of property in a manner expressly permitted by the zoning ordinance under stated conditions (Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190; Matter of North Shore Steak House v. Board of Appeals, 30 NY2d 238; see Matter of Sunrise Plaza Associates, [*4]L.P. v. Town Board of the Town of Babylon, 250 AD2d 690, 693; Matter of Crooked Cottage Court Home Owners Assoc. v. Zoning Board of Appeals Town of Huntington, 249 AD2d 389, lv. denied 92 NY2d 805; Matter of Twin County Recycling Corp. v. Yevoli, 224 AD2d 628, affirmed 90 NY2d 1000; Matter of 1081 Hempstead Turnpike Associates v. Mineo, 223 AD2d 646; Matter of Orange & Rockland Utils. v. Town Board., 214 AD2d 573; Matter of J.P.M. Properties v. Town of Oyster Bay, 204 AD2d 722). "The classification of a use as one that is permitted in a particular district subject to the granting of a permit is tantamount to a legislative finding that, if the conditions of the zoning ordinance are met, the proposed use is compatible with the standards and objectives of the zoning ordinance and will not adversely affect the neighborhood and the surrounding areas" (Matter of Twin County Recycling Corp. v. Yevoli, supra at 628; see Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, supra at 195; Matter of Twin County Recycling Corp. v. Yevoli, 90 NY2d 1000; Matter of Lee Realty Co. v. Village of Spring Valley, 61 NY2d 892; Matter of PDH Properties, LLC v. Planning Board of the Town of Milton, ___ AD2d ___, 748 NYS2d 193 {298 AD2d 684} ; Matter of Eddy v. Niefer, 297 AD2d 410; Matter of Orange & Rockland Utils. v. Town Board, supra ). Accordingly, an applicant who applies for a special use permit has a much lighter burden of proof than an applicant who applies for a variance (Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, supra at 195; see Matter of Twin County Recycling Corp. v. Yevoli, supra ).

Nevertheless, a special use permit is available only upon a showing of compliance with legislatively imposed conditions pertaining to the intended use (Matter of Wegmans Enters. v. Lansing, 72 NY2d 1000, 1001; Matter of Arata v. Peterson, 254 AD2d 353, 354, lv. denied 92 NY2d 818; Town of Brookhaven v. Spadaro, 204 AD2d 533, 534). Thus, entitlement to a special exception is not a matter of right and must be predicated upon the stated standards in the ordinance. Compliance with those standards must be shown before any exception can be secured (Tandem Holding Corp. v. Board of Zoning Appeals of the Town of Hempstead, 43 NY2d 801, 802; see Matter of PDH Properties, LLC v. Planning Board of the Town of Milton, supra ; Matter of Eddy v. Niefer, , supra ; Matter of Sunrise Plaza Associates, L.P. v. Town Board of the Town of Babylon, supra at 693).

Moreover, a zoning board still retains some discretion to evaluate each application for a special use permit, to determine whether applicable criteria have been met and to make commonsense judgments in deciding whether a particular application should be granted, and such determinations must be supported by substantial evidence (Matter of Retail Property Trust v. Board of Zoning [*5]Appeals of Town of Hempstead, supra at 195; Matter of Twin County Recycling Corp. v. Yevoli, 90 NY2d 1000, 1002; see e.g. Matter of Eddy v. Niefer, supra ). Of course, failure to comply with any condition is sufficient ground for denial (Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, supra at 195-196). Nevertheless, such determination must again be supported by substantial evidence (Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, supra at 196; see Matter of Eddy v. Niefer, supra ).

Concomitantly, although scientific or expert testimony is not required in every case to support a zoning board determination, the board may not base its decision on generalized community objection (Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, supra at 195; Matter of Twin County Recycling Corp. v. Yevoli, supra , 90 NY2d at 1002; Market Square Properties, LTD v. Town of Guilderland Zoning Board of Appeals, 66 NY2d 893; Matter of PDH Properties, LLC v. Planning Board of the Town of Milton, supra ; Matter of Eddy v. Niefer, supra ). Moreover, expert opinion regarding traffic patterns, when presented, may not be disregarded in favor of generalized community opposition (see Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, supra at 196; Market Square Properties, LTD v. Town of Guilderland Zoning Board of Appeals, supra at 895). Thus, where there are other grounds in the record on which to base denial, such as contrary expert opinion regarding traffic conditions, deference must be given by the Court to the discretion and commonsense judgments of the zoning board (Matter of Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, supra at 196; Market Square Properties, LTD v. Town of Guilderland Zoning Board of Appeals, supra ; Cummings v. Town Board of North Castle, 62 NY2d 833). Again, a reviewing Court will not substitute its judgment for that of the local zoning board unless it clearly appears to be arbitrary, capricious, or contrary to the law (see also Matter of Lemir Realty Corp. v. Larkin, 11 NY2d 20; Matter of Unal v. Peterson, 261 AD2d 551; see also Hannafey v. Board of Trustees of Village of Malverne, 294 AD2d 365; Matter of McDonald's Service Station, Inc. v. Board of Appeals of the

Incorporated Village of Garden City, 282 AD2d 604).

In the case at bar, petitioners' protestations to the contrary notwithstanding, the use proposed by petitioners, while permissible, necessarily required the concomitant compliance with Section 218-36. Clearly, petitioners were not entitled thereto as a matter of right (see [*6]also Matter of Serota v. Town Board of the Town of Oyster Bay, 198 AD2d 507; Matter of Marriott Corporation v. Rose, 168 AD2d 682; Matter of CBS Realty, Inc. v. Noto, 139 AD2d 645; Wisoff v. Amelkin, 123 AD2d 623; Matter of Knadle v. Zoning Board of Appeals of the Town of Huntington, 121 AD2d 447; Matter of Wen & Liz Realty Corp. v. Board of Zoning Appeals of the Town of Hempstead, 94 AD2d 182).

However, the record before this Court establishes that the petitioners complied with all the conditions for an accessory apartment permit as set forth in Section 218-36 of the Town of Mount Pleasant Zoning Code. There was no evidence, much less "substantial evidence", to support a contrary conclusion with respect to any of the conditions applicable to such a use as set forth in Section 218-36. No sufficient evidence to the contrary was proffered, other than the conclusory comments of the respondent Board members, which specifically established any factual basis upon which to find noncompliance with any pertinent condition. While it cannot be gainsaid that the respondent Planning Board by reciting the statutory criteria, provided specific, reasonable "grounds" for concluding that the use, while permitted, was not desirable at the subject premises, those grounds are not supported by the evidence and are supported only by speculation and conjecture concerning the effect the apartment will have on the traffic conditions or the well water available to the neighboring properties(see Matter of PDH Properties, LLC v. Planning Board of the Town of Milton, supra ; Matter of Eddy v. Niefer, , supra ; Matter of J.P.M. Properties Inc. v. Town of Oyster Bay, 204 AD2d 722; compare Matter of Mian Enterprises, Inc. v. Easa, 291 AD2d 559; Matter of Beck v. Gravelding, 247 AD2d 831, lv. denied 92 NY2d 801; Matter of Wal-Mart Stores, Inc. v. Planning Board of the Town of North Elba, 238 AD2d 93; Matter of Michelson v. Warshavsky, 236 AD2d 406).

Accordingly, based upon the record before this Court, it is constrained to conclude that substantial evidence does not support the determination of the Planning Board and its determination denying petitioners' request for a permit must be and is hereby annulled. The petition is hereby granted and this matter is remanded to the Planning Board for the Town of Mount Pleasant for the issuance of the permit sought by petitioners.

Dated:White Plains, New York

September 29, 2005___________________________

ALDO A. NASTASI, J.S.C.

TO:Philip A. Grimaldi, Jr.

150 Purchase Street

Rye, NY 10580

Atty. for Petitioners

Mt. Pleasant Town Attorney

1 Town Hall Plaza

Valhalla, NY 10595

Atty. for Respondent Footnotes

Footnote 1:The hydrologist felt that the test which would cost approximately $8,000 to $10,000, would not be accurate because it could not differentiate between peak and non-peak usage and thus could not duplicate normal operations of a water supply. Moreover, it would also be difficult to conduct because the neighbors would have to curtail their water usage for four (4) days.